By M. Walker Upchurch

 

Very rarely is there a game that captures the essence of what it aims to portray better than the EA Sports NCAA Football Franchise. The game aimed to please collegiate fans and did their best to accurately portray what made every University special. Whether it was touching the banner in Ann Arbor, slapping Howards Rock at Clemson, or Playing Like a Champion in South Bend, the franchise got it right. The game was engaging and made every school spectacular, from the fans in the stands with ESPN signs to the college football season’s highlights like the Army-Navy game with the cadets. It understood what made the college experience so exciting. More simply put, it made the alma mater’s and small college towns feel like home.

 

Unfortunately, this magisterial game came to a close in large part due to the O’Bannon V. National Collegiate Athletics Ass’n lawsuit that took place in 2014 through 2015.[1] The case was an antitrust lawsuit decided on September 30th, 2015, in which the court held that “The NCAA’s compensation rules were subject to antitrust scrutiny; the plaintiffs suffered an antitrust injury as a result of the compensation rules; the compensation rules were subject to analysis pursuant to rule of reason; the district court did not clearly err in finding that allowing NCAA member schools to award grants-in-aid up to their full cost would be substantially less restrictive alternative to current compensation rules; but the district court clearly erred in finding it a viable alternative to allow students to receive Name, Image, and Likeness (NIL) cash payments untethered to their education expenses.”[2]

 

Section one of the Sherman Antitrust Act States, “Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, 1,000,0000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.”[3]

 

The court found that the rule of the NCAA keeping schools from competing on price in compensating college athletes for the commercial use of their Names, Image, and Likeness was an unlawful restraint of trade in violation of Section 1 of the Sherman Antitrust Act. [4]

 

This decision presented the NCAA with a bevy of amateurism problems while still wanting to make as much money as possible. Flatly, to understand this, you must understand that the NCAA did not wish to pay the players. On their website, they state that “Allowing student-athletes to be paid for athletics performance would undermine the balance between the two [athlete and non-athlete] and detract from the integration of academics and athletics in the campus community.” [5]

 

Whether you believe that to be the case, or if you are more inclined to think along the lines of Jay Bilas, Esq. who stated, “We are selling these players for literally billions of dollars, paying the coaches millions of dollars, and building gigantic facilities. . . . It’s professional in every way.” There has long been the tension of paying these players.[6]

 

However, on October 29th, the NCAA Board of Governors voted to allow athletes to profit from their name, image, and likeness.[7] According to USA Today, these players will be able to profit off of their Name, Image, and Likeness as soon as August 1st, 2021.[8] Not so coincidentally, less than four months later, after this news broke, we have the official announcement that EA Sports will be bringing back a huge moneymaker for them and the NCAA. The Official announcement that EA sports and the NCAA are partnering with The College Licensing Company to bring back college football videogames broke on February 2nd.[9]

 

In conclusion, while it will be nice for nostalgic reasons for this game to come back, many of the larger issues that have plagued college athletics remain. While the players will profit from their name, image, and likeness, we are still yet to see whether the NCAA will do well by them. College Athletics is a humongous money maker. In the years 2018-2019, the top five colleges in total revenue from athletic departments were Texas, Texas A&M, Ohio State, Michigan, and Georgia. Their overall total revenue from their athletics department was cumulatively over $1,000,000,000.[10] Simply a tremendous amount. This is particularly true when you consider that they don’t pay the players for the services rendered. Hopefully, this game coming back will build a bridge for these athletes to a more even playing field.

 

[1] See O’Bannon V. Natl. Collegiate Athletic Ass’n, 802 F.3d 1049 (9th Cir. 2015).

[2] Id.

[3] 15 U.S.C. § 1

[4] See Brief in Opposition at i, O’Bannon V. Natl. Collegiate Athletic Ass’n, 802 F.3d 1049 (9th Cir. 2015).

2016 WL 3626736

[5] See NCAA DEFENDS SCHOLARSHIPS FOR COLLEGE ATHLETICS, NCAA, https://www.ncaa.org/about/resources/media-center/feature/ncaa-defends-scholarships-college-athletes (last visited Feb. 5, 2021).

[6] See Golic and Wingo, ‘There is no such thing as a student-athlete!’ – Jay Bilas on the NCAA’s new rules, ESPN https://www.youtube.com/watch?v=qQuoDncRuL8&ab_channel=ESPN, (last visited Feb. 5, 2021).

[7] See Board of Governors starts process to enhance name, image and likeness opportunities, National Collegiate Athletics Association,  https://www.ncaa.org/about/resources/media-center/news/board-governors-starts-process-enhance-name-image-and-likeness-opportunities, (last visited Feb. 5, 2021).

[8] Steve Berkowitz, NCAA unveils proposed rules changes related to athletes’ name image and likeness, USA Today, https://www.usatoday.com/story/sports/college/2020/11/13/ncaa-nil-name-image-likeness-proposal/6281507002/, (last visited Feb. 5th 2021).

[9] Chris Bengal, EA Sports plans to revive its college football video game franchise, CBS Sports, (Feb. 2, 2021 at 5:04 PM), https://www.cbssports.com/college-football/news/ea-sports-plans-to-revive-its-college-football-video-game-franchise/

[10] Steve Berkowitz, Matt Wynn, Camille McManus Jodi Upton, Rocio Fortuny, Veer Badani, Mitch Bannon, Jishnu Nair, Santino Primerano, Samantha Rothman, Tanner Russ, Peyton Smith, Frankie Vernouski, Thomas Vielkind, NCAA Finances, https://sports.usatoday.com/ncaa/finances(last visited Feb. 5, 2021.

Image Source: https://www.shutterstock.com/image-illustration/american-soccer-stadium-3d-rendering-516354493

 

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